Pierce v. Board of Ed. of City of Chicago

• Decision Date: 01 December 1976
• Docket Number: No. 76--375,76--375
• Citation: 358 N.E.2d 67,3 Ill.Dec. 67,44 Ill.App.3d 324
• Parties: , 3 Ill.Dec. 67 Kerry PIERCE, a minor, by Carvenia Pierce, his mother and next friend, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 67

358 N.E.2d 67

44 Ill.App.3d 324, 3 Ill.Dec. 67

Kerry PIERCE, a minor, by Carvenia Pierce, his mother and next friend, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.

No. 76--375.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 1, 1976.

Smith & Munson, Ltd., Chicago, for plaintiff-appellant.

Frank Glazer, Ltd., Chicago, for defendant-appellee.

DIERINGER, Justice.

The plaintiffs, Kerry Pierce, a minor, and Carvenia Pierce, his mother, filed a complaint at law in the Circuit Court of Cook County demanding damages from the defendant, Board of Education of the City of Chicago (hereinafter called 'the Board'). In response, the Board filed a motion to dismiss the complaint, which was granted. It is from this order the plaintiffs appeal.

The sole issue presented for review is whether the complaint states a cause of action.

The complaint set out that from 1971 to February of 1974 the plaintiff attended the F. W. Riley School in the City of Chicago, and during that time the minor-plaintiff was suffering from a specific learning disability. The complaint further alleged the defendant was advised of this fact by the minor-plaintiff's parents and various privately retained physicians of the plaintiff, who recommended the boy be transferred from the regular or normal classes of instruction to classes known as special education classes or learning disability classes. Nevertheless, the defendant failed and refused to either transfer the minor to these classes or undertake their own testing and evaluation of the boy. As a result of the defendant's inaction the plaintiff remained in regular classes at the F. W. Riley School, where he was required to compete with students not suffering from a learning disability, and as a result sustained severe and permanent emotional and psychic injury requiring hospitalization and medical treatment for his injuries.

The Board argues the order granting the motion to dismiss should be affirmed, because:

(1) the Board had no duty to see that Kerry Pierce receive special education, since by state statute that duty is vested in the Superintendent of Public Instruction (see Ill.Rev.Stat.1975, ch. 122, par. 14--8.01):

(2) no act of misconduct constituting a breach of duty was alleged in the complaint; and

(3) no action exists in Illinois for emotional injury without accompanying physical injury.

In examining whether the order granting the motion to dismiss should be reversed, certain procedural rules must be observed. Pleadings shall be liberally construed with a view to doing substantial justice between the parties. (Ill.Rev.Stat.1975, ch. 110, par. 33(3)). A motion to dismiss admits, for the purposes of the motion, as true all facts well pleaded (Carroll v. Caldwell (1957), 12 Ill.2d 487, 147 N.E.2d 69), together with all reasonable inferences which could be drawn from those facts (Doner v. Phoenix Joint Stock Land Bank of Kansas City (1942), 381 Ill. 106, 45 N.E.2d 20; Miller v. Veterans of Foreign Wars of the United States (1965), 56 Ill.App.2d 343, 206 N.E.2d 316). A motion to dismiss searches the record, and all relevant facts are considered. Where a material issue of fact is raised, the court will deny the motion to dismiss.

The complaint in question specifically charged the Board with having been given notice of the child's learning disability by private physicians, on numerous occasionS who recommended the boy be transferred to...